The National Security Agency (“NSA”)’s upstream and PRISM programs are based on technology that enables analysts within the United States to intercept the Internet and telephone communications of people throughout the world. The legal basis for the programs, however, is a territorial distinction. The FISA Amendments Act authorizes warrantless surveillance of the contents of communications if the target of the surveillance is not a United States national and is reasonably believed to be located outside the United States. Through an analysis of the NSA’s upstream and PRISM data collection programs, this paper explores the question: when technology erases territorial limitations on a nation’s surveillance power, should individuals’ legal rights against such surveillance depend on their nationality and geographical location?

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